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Apologetics for Your Obligatory Hobby Lobby Conversation Part 1

Part of America is relieved. Part of America is incensed. So basically it’s status quo. The nine wise ones have decided and, as a Christian, I’m relieved. In First Things Robert George sums up why most Christians are relieved:

As [Richard John ] Neuhaus tirelessly insisted, our religious lives cannot be restricted to what we do in our homes before meals or on our knees at bedtime, or to our prayers and liturgies in churches, synagogues, mosques, and temples. Religious faith motivates, or can motivate, our convictions and actions in the exercise of our rights and responsibilities as citizens, in our philanthropic and charitable activities, and in the conduct of our businesses and professions.

And that’s where the apologetic begins. Mention Neuhaus’ idea of Christian conduct to most people apoplectic about Hobby Lobby and you will likely get something like this from king of the interwebz, George Takei:

Hobby Lobby is not a church. It’s a business — and a big one at that. Businesses must and should be required to comply with neutrally crafted laws of general applicability. Your boss should not have a say over your healthcare. Once the law starts permitting exceptions based on “sincerely held religious beliefs” there’s no end to the mischief and discrimination that will ensue. Indeed, this is the same logic that certain restaurants and hotels have been trying to deploy to allow proprietors to refuse service to gay couples. We are a nation that respects religious beliefs, but also the right not to have those beliefs imposed upon you by others. Our personal beliefs stop at the end of our noses, and your [sic] should therefore keep it out of other people’s business — and bedrooms.

I think Takei’s comments speak out of anger not sober reflection and to put it mildly, they are ridiculously simplistic. I expect better from the witty Takei than to simply float upon the angst-ridden ocean of faux outrage. His call for a boycott as a result is irresponsible and, dare I say it, vengeful. (Yep, I went there.)

However it also neatly sums up the main points of the outrage narrative that will no doubt transform into gleeful election fund-raising. (Yep, I went there too.)

So let me be apologist and defend The Supremes and the Greens.

Hobby Lobby is not a church. It’s a business — and a big one at that.

The implication here is that Churches get exemptions for religious beliefs but religious people who own businesses don’t. Once Christians (or Muslims or whatever) decide to open their doors to the public there rights to not be involved in things that violate their religious beliefs must simply be surrendered. As a justice in the Elaine Photography Case said, “It’s the price of citizenship.” That’s it. People believe differently than you do. You can’t decide what services you will provide for them because you disagree with them. This justice goes on to say, religious people are free. They are free to worship and believe whatever they want. They are just not free to conduct themselves in the marketplace in any way they choose because:

. . . That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.

Thus toleration is broadened from non-interference in one’s actions to requiring religious people to be complicit in the beliefs of others. In essence it requires religious people to simply act like non-religious people in public. It is as if commerce is secular a game and if you enter the game you must play by the rules. Which rules exactly? The rules of free enterprise where people are welcome to vote with their feet if they don’t like something? The rules of business law which the Supreme Court just upheld? Or some quasi-mystical state version in-between? By the way, before the Affordable Healthcare Act, this was not a problem. At the risk of going all school-yard: Hey, you guys started it.

In dealing apologetically with this sort of objection I suggest an analogy as a way of showing the slight absurdity of this sort of separation of church and market. What if I as a bacon-loving meat eater secure employment at a vegan restaurant where no animal products are used in the making of the food. The grill, the pots, the pans etc. are all free of all animal products and proudly so. Suppose every other employee is allowed, even encouraged, to prepare their fresh vegan lunch in the kitchen. I want to prepare my ham sandwich wrapped in bacon fried in cheese-curds. Is it reasonable for the owner to deny this privilege? Is it reasonable for manager to kindly ask me to respect the sanctity of the kitchen and the vegan beliefs and eat somewhere else? It would of course be different if by some bizarre coincidence I have to eat meat and there is no where else to prepare my meal. But that’s the point. The Religious Freedom Restoration Act (RFRA) is a very narrow sort of law with specific conditions. Listen to Robert George summarize the conditions for exemption from generally applicable laws like Obamacare:

. . . provides for conduct exemptions to laws of general applicability where such laws substantially burden religious practice or belief, unless the government can meet the high burden of demonstrating that a legal imposition is supported by a compelling governmental interest—the highest standard known to our law—and represents the least restrictive means of protecting or advancing that interest.

“Least restrictive means” is key here. The reason the Court sided with Hobby Lobby is that the four abortaficients it wanted exemption from paying for can be achieved by other means without Hobby Lobby being directly complicit. Most are quite inexpensive. The Affordable Healthcare Act already has provision for providing those drugs for employees of religious non-profits why should it be any different just because Hobby Lobby makes a profit? Unless of course the underlying source of disgust from Takei is that if you are religious you shouldn’t seek a profit. Profit is bad? Or at least what one perceives as too much profit is bad. I could be wrong but I think I detect a little jab at capitalism: “Hobby Lobby is a business–a big one at that.”

“Once the law starts permitting exceptions based on “sincerely held religious beliefs” there’s no end to the mischief and discrimination that will ensue.”

This is the slippery slope argument. Its funny that a slippery-slope argument is always fallacious only when the other guy is using it. Slippery slopes are not always fallacious but they can be without merit. Justice Ginsberg (she’s the one with the doily) writes a dissent in this case that is essentially one long slippery-slope argument.

“Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.

Far be it from me to question Justice Ginsberg, but it seems to me that The Roberts court has not given businesses carte blanche to manufacture their consciences. Furthermore, one doesn’t have to worry too much about businesses suddenly getting religion so as to exempt themselves from certain provisions of the Affordable Care act for at least three reasons. First, its not profitable, and corporations are all about the profit are they? (he said with a smidgeon of sarcasm since Hobby Lobby seems to be the exception that proves the rule). Ginsberg may be right that the logic of the Hobby Lobby decision can extend to any for-profit company but I doubt the economics will. There is little economic gain that could come from large corporations suddenly getting religion. Second, vaccinations, anesthesia, pills coated in gelatin all sound like things the state has a compelling interest in making sure continue. The distinction between anesthesia and contraception is pretty stark don’t you think? Here’s one last reason I think the slippery slope worries are overblown: They weren’t really a problem before the Affordable Healthcare Act. The RFRA was passed in 1993. In those 21 years, we have not seen a rash of companies trying to get exemptions for everything from vaccinations to gel-caps. When the Affordable Care Act went into effect, it presented new guidelines for insurance companies that triggered the request for exemption by Hobby Lobby and the Little Sisters of the Poor. As Robert George points out, for the whole of history before the ACA, companies didn’t have to provide coverage for contraception and yet there was no corporate Taliban.

For the whole of history, before Obamacare was signed into law only four years ago, no company in the United States was required to provide coverage for these products. So the Obama administration is hardly in a position to say that the provision of abortion drugs or devices, or coverage including them, constitutes a compelling governmental interest. Indeed, one wonders how the government’s attorneys could make that claim with a straight face.

So to sum up our talking points into some challenging questions:

1) Religious faith is more than private religious worship isn’t it?

2) What are these rules of the market you speak of?

3) No slippery slope because

a) corporations follow profit incentive don’t they?

b) no slippery slope before 2010 so why after?

Next week I’ll deal with some less rational objections like the court is patriarchal and should stay out of our bedrooms. I would especially like to hear from you, dear reader, if you think my analogy with the vegan restaurant is off-base and if you have a better one. I’m really still working on that one.

“The implication here is that Churches get exemptions for religious beliefs but religious people who own businesses don’t.”

That’s not the implication behind my problem with the ruling. Corporations exist to make a distinction between individual and businesses. I have no problem with a sole proprietorship or partnership having the right to use their personal religious beliefs in business decisions. However offering the same privilege to a corporation is making the distinctions more fuzzy.

And your analogy falls short. The hypothetical business you mention requires the restriction in order to operate their business under the parameters that makes it unique. Offering an insurance policy required by the government that might include things offensive to the Hobby Lobby owner’s religious belief does not interfere with their ability to operate their business under the parameters that make them unique.

Although, I do agree that a boycott is overboard (but I said that about the Chick-fil-a boycott).

The SCOTUS decision makes me more nervous about the potential future implications of granting rights normally reserved to an individual to a corporation. Yeah, corporations voting is a slippery slope, but the groundwork for such a decision was just extended. It is the direction things have been heading in a while.

Offering an insurance policy required by the government that might include things offensive to the Hobby Lobby owner’s religious belief does not interfere with their ability to operate their business under the parameters that make them unique.

This is a disingenuous statement that totally misses the point. To illustrate: the Fugitive Slave Act of 1850 did not interfere with the ability of Northerners who were opposed to slavery to operate their businesses, provide for their families, or practice their religions as they saw fit. It merely required them to violate their own consciences by being part of the slavery system by assisting authorities in apprehending fugitive slaves and returning them to their masters.

Likewise, the contraceptive mandate of the Affordable Care Act requires particular business owners to violate their own consciences not merely by requiring them to “offer” (which is clearly a weasel word in this context) four specific forms of contraceptive coverage (Hobby Lobby still covers 16 other forms of contraception), but by requiring them to pay for it.

Hobby Lobby isn’t in the business of offering insurance, they are, for lack of a better niche description, an arts and crafts supply store. As such, “offering an insurance policy required by the government that might include things offensive to the Hobby Lobby owner’s religious belief” does nothing to interfere with their ability to supply arts and craft items to consumers of arts and crafts items. The point of my statement was illustrating how that is different from the analogy of a bacon loving person preparing personal food in a vegan restaurant kitchen. Nothing more. Not disingenuous at all.

I don’t believe I’m the one missing the point. The simple fact is that the analogy fails.

To further point out what you seemed to miss, the Fugitive Slave Act didn’t prevent, for example, a tanner from continuing to offer leather goods. It did not prevent a carpenter from working with wood; a tailor from offering cloth goods. And so on and so on. Did it cause them to violate their personal conscience. Sure, but it didn’t prevent their business from operating under the parameters which allowed it to do business.

A bacon-loving individual preparing person meat and cheese filled food in the previously meat and cheese free kitchen of the vegan restaurant of his employer prevents the vegan restaurant from operating under the parameters which allowed it to do business because the kitchen is no longer vegan… the company has lost its distinctiveness. Therefore the original analogy fails. That, quite simply, was the point.

Your argument—and, in fact, your entire outlook on this issue—is utterly irrelevant. It is not, and never has been, about what business Hobby Lobby is engaged in, or about whether or not the contraception mandate interferes with said business.

Yes, you are the one who is missing the point. It is about requiring people to pay for things that violate their religious beliefs. (And by “people” here the meaning goes beyond sole proprietorships or partnerships and extends to closely-held corporations.) Period. The majority on the Supreme court voted that it is wrong to do that, while the minority voted that it was allowable.

I’m guessing, whether intentionally or not, you are simply having trouble with reading comprehension. If you go back and read my original comment, the point I was making, that you seem to fail to get… indeed, the preface for the comment you quoted… is revealed in the context of the very first statement in that paragraph. Context is everything.

That paragraph begins with this statement, “And your analogy falls short.” The only reason that the type of business being run matters (and it does in context) is that the analogy between Hobby Lobby and the hypothetical vegan restaurant, the analogy given in the original article, is not a valid analogy simply because of the type of businesses being discussed. If you have trouble comprehending that, I’m not sure how else to help you.

The decision by the SCOTUS was indeed about closely held corporations. And the overall context is indeed whether the rights and freedoms granted under the Religious Freedom Restoration Act extend to a closely held corporation. The SCOTUS ruled that they do. I believe that, in the end, it will be a case of getting what you ask for but not what you wanted, but that remains to be seen.

In the course of defending the SCOTUS decision, the author of this article used an analogy as a supporting argument. That argument is invalid because the analogy fails. That was my only point about they type of business involved, and it is relevant with regards to whether the analogy is a legitimate comparison. Again, if you fail to see that, I can’t help much more.

Each time you write you get further away from the issue, become less coherent, and then blame me. You keep coming back to the issue of whether compliance with the contraceptive mandate creates business impediments for Hobby Lobby. That’s a red herring. And thus so is your reference to the vegan analogy. This case is about the religious rights of business owners—not whether the religious rights of employees impedes business, or even of whether corporations qualify as persons.

But perhaps discerning the fundamental error in your argument—and failure of your self-vaunted comprehension—involves going back to the second sentence of the paragraph in your first comment: “Corporations exist to make a distinction between individual and businesses.” In the context of this discussion that is your primary fallacy. A huge corpus of legal precedent going back to the year 1819 as firmly established the concept of corporate personhood in the U.S. legal tradition. So when you write, “However offering the same privilege to a corporation is making the distinctions more fuzzy,” you’re out of touch with about 195 years of American jurisprudence.

I would suggest the analogy does work if we read it in (what was the word you used? Oh, yes) its context. As the article progresses in building the case we read:

Thus toleration is broadened from non-interference in one’s actions to requiring religious people to be complicit in the beliefs of others.

This is important as the issue in question wasn’t whether women have a right to kill their child in the womb but should another person (and yes, corporation are legally regarded as “persons” in matters of law) be compelled against their sincerely held religious beliefs to pay for the weapons to be used in the execution of the what they regard as an innocent human? If the answer is yes, then the corporation would have to either violate their conscience in order to remain in business or close the business in order to not compromise their convictions. In the example of the vegan restaurant, using the pots, pans, etc to prepare a “ham sandwich wrapped in bacon fried in cheese-curds” does no harm to those items and does not prevent the business from operating as normal once the items are properly cleaned and sanitized, however, if the owners and customers hold to views which regard meat products even touching their prep space and equipment as wrong (somewhat like an Orthodox Jew would have 2 kitchens, pots, pans, plates, utensils, one for meat and one for dairy) and the Federal government tells them that not only do they have to set aside their convictions but they must be complicit and prepare the “ham sandwich wrapped in bacon fried in cheese-curds” for the employee the courts, as they did in this case, can and should carve out an exception. Hobby Lobby did not refuse to provide birth control before, during or after the case went to court. There are 16 forms of birth control in the company provided healthcare plan. They were opposed to 4 abortion inducing drugs. The question in the example has little to do with the type of business but with whether or not the Federal Government has a compelling interest in forcing someone to violate their sincerely held religious beliefs and cause them to not only violate their convictions but assist, pay for, be an accessory to the very act or behavior they view as morally wrong. That would be true in forcing a vegan restaurant to provide a “ham sandwich wrapped in bacon fried in cheese-curds” or a hobby and crafts chain to pay for abortion causing drugs. In both cases the governments interests can be served in ways which do not violate the conscience of the respective businesses or confidence of their particular clientele. Affirming someone’s right to behave in ways that a “person” (whether individual or corporation) find morally wrong is not the same as being forced by law to participate, facilitate and partner what the “person” believes to be morally wrong

Since the author of the article used the vegan analogy, that makes discussion of whether the analogy is valid, relevant and not a red herring. Sorry if you don’t see that.

Don Veinot,

I understand what you are saying, despite the snark. I still think it fails because Hobby Lobby is not required to “prepare” the birth control drugs in question. Preparing non-vegan food in a vegan kitchen (or even allowing the employe to prepare it himself) does involve items directly used in the day to day operation of the business in a way that is not relevant to Hobby Lobby offering an insurance plan.

I didn’t quite expect the original responses I got, given the nature of this website/ministry. But I should have known better given the internet. In any case this is my last post. It wasn’t my intent to generate an argument with posturing as much as to possibly see some discussion. But given the nature of politics, the internet, and our nation currently, I guess posturing and such is the way things must be.

To be clear, I have no problem with Hobby Lobby being allowed an exclusion. I said as much in my original post. I just wasn’t pleased with the ruling of the SCOTUS because, while corporations do indeed have “person” status as established in many laws (as Mr. Henzel so “kindly” pointed out), the purpose for a corporation is to establish a distinction between the “person” of the corporation and the person of the owner. This ruling greys those lines.

To illustrate what I mean, let me ask a few questions. Feel free to answer them or not, they are intended more as food for thought. Which church does Hobby Lobby attend? To which denomination or church does Hobby Lobby pay tithes? To whom does Hobby Lobby pray? Where and when was Hobby Lobby baptized? Where does Hobby Lobby partake in communion? Who has redeemed Hobby Lobby’s soul? Now, replace Hobby Lobby in those questions with Mr. Green and the answer are different. Hobby Lobby as an entity, regarded as a person under the lay, doesn’t have a religion.

That is why I personally disagree with the SCOTUS decision. And while my personal opinion on the matter is open for discussion, like a dutiful American and Christian, I will obey the law of our country.

Paul, I do appreciate your posts. I do want to note that although I did use snark (and at times like to do so) it isn’t entirely one sided. It was you when responding to Ron wrote, “you are simply having trouble with reading comprehension.” I am also unclear why your position is to be viewed as “discussion” but responses from Ron or I are “posturing.” Certainly we disagree and debating the issues can be helpful but being unpersuaded should probably not be considered posturing. If it is then wouldn’t it be the case that you are posturing as well? It could just as well be that we are seeing the issues from a different position and are not, for any number of reasons, able to articulate the position in a way that the other side can say, “I understand but disagree.” The essential question is not if a law prevents a business from functioning in its normal course of activities but whether a core value must be compromised in order to stay in business. Not to relitigate the arguments but just to say again, I appreciate your input and challenges

“This is a disingenuous statement”
“Your argument—and, in fact, your entire outlook on this issue—is utterly irrelevant.”
“Each time you write you get further away from the issue, become less coherent, and then blame me.”

Mr. Veinot, I appreciate your reply. I’m familiar with your particular wit, and generally it doesn’t bother me, even when I disagree with the perspective of an article you write or post. 🙂 In the wake of the above comments by Mr. Henzel, a comment like, “…(what was the word you used? Oh, yes) its context” seems more posturing, taking sides or the like, than it does genuine discussion. Perhaps I’m out of line, but the discussion up to that point has me a little defensive.

The suggestion that I’m disingenuous, irrelevant, and lacking coherence was made. I suggest there is a problem with reading comprehension because I don’t understand any other way Mr. Henzel’s conclusions can be reached. You seem to have no trouble comprehending that my statement about the type of business is indeed relevant to the discussion of the analogy, and yet Mr. Henzel, despite my continued explanation, considers me disingenuous, irrelevant, and lacking coherence. As you don’t have the trouble comprehending my point, I stand by my statement that (to include more of the original quote), “whether intentionally or not, [Mr. Henzel is] simply having trouble with reading comprehension.

Perhaps my word choice is poor, but I didn’t expect to be accused as I was without reasonable discussion, or, it would seem, even genuine effort to understand my point. There are two issues I consider being discussed, first the overall issue of the SCOTUS decision, and then the other issue the relevance and accuracy of the vegan restaurant analogy. You seem to comprehend these are distinct, but related. Mr. Henzel seems to conflate the two and be unable to distinguish them, both in my original comment and in the subsequent discussion.

Thanks for your ministry and response. It has been instrumental in leading me into a deeper understanding of grace (and in part being “run out” of a Gothard church, for the best).

I am glad for this exchange and to get to know you a bit. And now since I have the opportunity to be home instead on the road behind the wheel of the truck I am going to spend some time with my wife and a friend in the screen porch listening to the birds settle in for the night 🙂 Blessings.

What seems to be missing from your analysis of Jonathan’s vegan illustration is the key phrase: “the vegan beliefs.” (“Is it reasonable for manager to kindly ask me to respect the sanctity of the kitchen and the vegan beliefs and eat somewhere else?”) So, once again: the analogy is not (and never was) merely about “the parameters that makes it/them unique,” but about matters of conscience.

I liked this article. The run thru and the (snarky?) playful style too. (I have enough textbook-age to read.)

One thing that bothered me from the oral arguments on was the the bill of rights was- well, where was it actually? The norm of reading things into it is so established maybe the argument was put aside for practical reasons. I get that. It reminds me of that line in Amistad: “Jesus lost.” But, I thought it was worth mentioning.